Supreme Court Could Upend Biden Administration’s Climate Policies

Justice Samuel Alito wary of granting EPA broad authority to fight climate change without congressional input

Kevin Daley • March 1, 2022 11:50 am

The Supreme Court could soon limit the Environmental Protection Agency’s ability to cap carbon emissions, a move that could upend President Joe Biden’s climate policies.

The justices heard arguments on Monday over what steps the EPA can take to regulate energy providers under the 1970 Clean Air Act. The conservative justices were dubious that Congress gave the EPA a broad mandate to fight climate change under the 50-year-old law, a blow to Biden administration regulators hoping to transition to green energy by fiat.

Monday’s dispute could have geopolitical consequences amid the Russian invasion of Ukraine, which is expected to disrupt Russian oil supply for the foreseeable future. White House press secretary Jen Psaki shut the door to expanding domestic fossil fuel production in a Sunday interview with ABC News. Psaki said Russia’s status as a leading oil and natural gas producer makes green energy alternatives all the more urgent.

The case has its roots with the Obama-era Clean Power Plan, which meant to replace coal-fired power plants with green alternatives by EPA fiat. Though the Trump administration ultimately scrapped the plan, stakeholders have sparred in the intervening years over the scope of the agency’s power.

Conservatives warn that the Biden EPA could quash domestic fossil fuel producers with a host of regulations on fossil fuels and climate change that it will unveil by the end of this year. The Court’s decision in Monday’s case is expected to dictate the reach of those regulations, and could significantly blunt progressive hopes.

Now before the High Court, a dizzying array of questions are contested. One is whether the Clean Air Act empowers the EPA to regulate the entire sector. A coalition of red states led by West Virginia says the EPA can regulate particular producers—literally specific buildings—but could not announce emissions thresholds for the entire industry.

Another question, and one of greater consequence, is whether the Clean Power Plan or a forthcoming Biden analogue violate a legal rule called the “major questions doctrine.” That rule holds that Congress needs to be crystal clear when it’s assigning an agency powers of “vast economic and political significance.” Conservative litigants in Monday’s case say Congress never meant to give the EPA power to effectively wipe out the coal industry.

The conservative justices focused on the major questions rule throughout, though it was difficult to forecast a ruling based on their statements. Justice Samuel Alito was wary of granting the EPA broad authority to fight climate change without congressional input.

“I really don’t see what the concrete limitations are,” Alito said. “If you take the arguments about climate change seriously, this is a matter of survival.”

Justice Brett Kavanaugh made similar comments, suggesting the administration is relying on “an old statute that wasn’t necessarily designed for something like this.”

The Biden administration is gunning to get the case tossed on technical grounds. Solicitor general Elizabeth Prelogar, the government’s Supreme Court lawyer, told the justices that the red state plaintiffs want the Court to get out ahead of the agency, which is improper.

​​”What they seek from this Court is a decision to constrain EPA’s authority in the upcoming rulemaking,” Prelogar told the justices during Monday’s argument. “That is the very definition of an advisory opinion, which the Court should decline to issue.”

A decision in the case, No. 20-1530 West Virginia v. EPA, is expected by the summer.